Ex parte Thaw

• Decision Date: 17 December 1913
• Docket Number: 86.
• Citation: 209 F. 954
• Parties: Ex parte THAW.
• Court: U.S. District Court — District of New Hampshire

209 F. 954

Ex parte THAW.

No. 86.

United States District Court, D. New Hampshire.

December 17, 1913

Drew Shurtleff, Morris & Oakes, of Lancaster, N.H., and N. E Martin, of Concord, N.H., for petitioner.

William T. Jerome, of New York City, and Bernard Jacobs, of Lancaster, N.H., for the State of New York.

ALDRICH District Judge.

Under the petitioner's motion to be admitted to bail, some appropriate method must be devised for inquiring into the public phase of the question presented. If we look to the face of the papers, it will appear that extradition is sought for a crime, declared by a New York statute to be a misdemeanor only, and not because he is an insane person escaping from custody. This reference to the nature of the charge is for the purpose of stating the present question and not for the purpose of defining the limit or scope of inquiries to be made to specific or general questions which may possibly hereafter arise.

For the purposes of the present question, therefore, we have a situation in which the right of bail exists, and the right is absolute whether viewed under the statutes of New York, the statutes of the state of New Hampshire, or the federal laws unless liberty of the petitioner under bail would be a menace to the community. It would not be interesting to inquire into the historical oppressions or other reasons which led to making the right of bail absolute in this country, except to say that they were sufficient to warrant imperative declarations in Constitutions and statutes that persons charged with the lesser crimes shall be entitled to bail; and for putting courts and magistrates under the imperative mandate that bail shall be granted except in cases of grave crime.

The right of bail, however, is subject, like all other personal rights, to being influenced by considerations of public policy and public safety. This petitioner was put on trial some years ago charged with a high crime, and was acquitted on the ground of insanity, and he was thereupon, under a New York statute, committed to the Matteawan Hospital for the Insane. As a result of these proceedings, and according to the theory of the subsequent New York cases in respect to them, the petitioner was held at Matteawan, not as a criminal, but as a person whose liberty would be a menace to the community.

There is no pretense in any of the New York cases that there was any authority, under the New York law, for holding him, or suggestion of any purpose on the part of the learned judges dealing with the situation to hold him, beyond the time at which he would cease to be a person whose liberty would be a menace. Indeed, Justice Morschauser says in deciding one of the Thaw habeas corpus cases before him, referring to the verdict, and quoting the statute:

'The court must thereupon, if the defendant be in custody, and they deem his discharge dangerous to the public peace or safety, order him to be committed to the state lunatic asylum until he becomes sane.'

And again:

'Until he has recovered, or until such time as it shall be reasonably certain that there is no danger of a recurring attack of the delusion, or whatever it may be. ' People v. Baker, 59 Misc.Rep. 359, 361, 365, 110 N.Y.Supp. 848, 849, 852.

Mr. Justice Rich, in discussing the question of the constitutionality of the statute, and, in referring to the nature of Thaw's custody and to the statute (People ex rel. Peabody v. Chanler, 133 A.D. 159, 168, 117 N.Y.Supp. 322, 329), says:

'Both are temporary expedients, exercised for the purpose of discharging the duty the state owes the public of protection from the danger incident to permitting freedom to a person mentally deranged.'

And again, referring to the duty of the state:

'It is its duty to protect the public, as well as the unfortunate himself.'

And again:

'He could not be detained a moment after establishing his restoration to sanity.'

And it is pointed out by the learned justice that such duty is discharged and such authority exercised under the police power of the state. Again, Mr. Justice Jenks, in the course of his opinion in the same case, says:

'Such a commitment is not for the punishment of such a defendant, for there can be no punishment for him who has been acquitted; but it is for protection for the public, made in the exercise of the police power of the state. * * * The commitment can last only so long as the defendant is insane, and he has the right at any time under the law to have his sanity determined upon habeas corpus. * * * The order of commitment settles nothing finally or conclusively against the person committed.'

Indeed, Justice Mills, in the course of his opinion, and in reviewing the various proceedings, in New York, involving Thaw's mental condition, said, that the prior hearings, and quasi judicial determinations, did not operate to put the question of present mental condition under the res judicata rule; that Thaw was only to be held until his enlargement would not be a menace to the public; that he was not in a hospital as a criminal to undergo punishment, but there to be treated with consideration and privileges, not incompatible with discipline, with the hope that he might ultimately recover.

This New York decision was in 1909; it assumes that Thaw has the right to bring as many habeas corpus proceedings as he deems necessary to protect his legal rights; and that the question of mental condition is always open under such a proceeding. The reasoning of Justice Mills not only applied to the then present mental condition, but it reaches here and includes this proceeding, and extends into the future, and its force, in effect, ordains, not that Thaw's present condition would be a menace to the public peace and safety, if he were at large, but that the question of mental condition is now open, and that this court, and all future courts, having jurisdiction, and the responsibility of the question of Thaw's mental condition, must deal with it as an open one. People ex rel. Thaw v. Lamb, Superintendent of Matteawan State Hospital (Sup.) 118 N.Y.Supp. 388.

There have thus been several hearings in Thaw's case in New York upon habeas corpus; and it is perfectly correct, I think, to say that the theory of them all is that the petitioner was held under the police power of the state during such time as his liberty would be dangerous to himself and to the community, and that they make no suggestion whatever that any finding of fact upon a question relating to danger to himself or the community is conclusive upon any issue of fact involved in any subsequent proceeding. Indeed, it would be quite consistent with the theory of the New York authorities to say that if the petitioner were in Matteawan today, and his case were under hearing in New York upon habeas corpus, the fact of sanity or insanity, of menace or no menace, of danger or no danger, would not be accepted as one concluded by any of the previous findings or adjudications. The petitioner, being thus held under the duty of protection, and under police power exercised as a temporary expedient, escaped, and was subsequently apprehended and taken into custody in this jurisdiction.

Extradition proceedings were instituted before the Governor of New Hampshire. Subsequent to custody by New Hampshire state authority, and before executive action, habeas corpus proceedings were invoked in the United States court by the person escaping from New York protection, and in his...